A competition took place about the rents of two particular years. The case was appealed. One of the parties arrested the next year's rent. The appeal found not to prevent furthcoming on the second arrestment.
The Court of Session will grant warrant for horning, for levying the costs awarded by the House of Lords in an appeal.
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Mrs Lyon relict of Muiresk, and John Riddoch her assignee, being creditors to the Earl of Aboyne, they arrest the bygone rents in the tenant's hands, and pursue a forthcoming. Compearance is made for the Countess of Aboyne, now Lady Kinnaird, who stands infeft in these lands for her jointure, and alleged no process, because, you having obtained a decreet on the same very title and right now insisted on, we appealed and protested for remeid of law to the British Parliament, which is tabulated and received in the House of Peers, and execution by their certiorari sisted thereon. (See this protest 25th February 1710, Fount. v. 2. p. 573. voce Personal Objection.) Answered, That appeal has no relation to the present affair, for that was a decreet for the crops 1707 and 1708; whereas this is for the rents 1709, and so not being ad idem, it can be no hindrance to this present pursuit. Replied, Though it be for different years, yet the claim, ground of debt, and medium concludendi are all the same, and must run the same fate of a Parliamentary Decision. The Lords, though they were very tender of those privileges, yet found the former protest for remeid of law could not extend to this case, being for another year, and could neither stop procedure nor execution till the parliament should interpose their authority; which they had not done as to this new process for another year.
Fol. Dic. v. 1. p. 47. Fountainhall, v. 2. p. 589.*** The following discussion, mentioned by Forbes, relative to the costs awarded in the House of Lords, took place between the same parties.
The Lord and Lady Kinnaird having protested for remeid of law before the House of Peers, against a decreet of the Session, preferring Mistress Lyon to them, in a process of furthcoming at her instance against the Earl of Aboyne and his tenants; and lodged their protest before that Honourable. House: She obtained judgment there, ordaining the appeal to be dismissed the House, and the appellants to pay, or cause to be paid, to her the sum of forty pounds Sterling for her costs and charges caused by the said appeal; and ordaining the Lords of Session to order these costs to be levied by the same rules and methods, as costs given by their Lordships are to be levied, The Lords, upon Mistress Lyon's application by bill, with the judgment and order of the House of Peers produced, granted warrant for letters of horning at her instance against the said Lord and Lady Kinnaird, for levying the forty pound Sterling of costs and charges, and such other diligence as usually followeth upon their Lordships decreets and sentences. Albeit, it was alleged for the Lord and Lady Kinnaird, That no such summary warrant could be granted, but that Mistress Lyon behoved to insist, via ordinaria, by a process, for her said costs.
